WT/DS405/R 
 Page G-1 
 
 
ANNEX G 
  
REQUEST FOR CONSULTA TIONS AND REQUEST 
FOR THE ESTABLISHMENT OF A PANEL  
 
 
 
Contents Page 
Annex G-1 Request for Consultations by China G-2 
Annex G-2 Request for the Establishment of a Panel by China G-9 
 WT/DS405/R 
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ANNEX G-1 
 
 
REQUEST FOR CONSULTATIONS BY CHINA 
 
WORLD TRADE  
ORGANIZATION   
WT/DS405/1 
G/L/916 G/ADP/D82/1 
8 February 2010  
 
(10-0706) 
 Original:   English 
   
EUROPEAN UNION – ANTI-DUMPING MEASURES ON  
CERTAIN FOOTWEAR FROM CHINA 
 
Request for Consultations by China 
  
 The following communication, dated 4 February 2010, from the delegation of China to the 
delegation of the European Union and to the Chairm an of the Dispute Settlement Body, is circulated 
in accordance with Article 4.4 of the DSU.  
_______________ 
  
 My authorities have instructed me to request consultations with the European Union pursuant 
to Article 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes  
("DSU"), Article XXIII:1 of the General Agreement on Ta riffs and Trade 1994  and Article 17 of the 
Agreement on Implementation of Article VI of GATT 1994 (" Anti-Dumping Agreement ") regarding 
the following: 
 
(a) Article 9(5) of Council Regulation (EC)  No. 384/96 on protection against dumped 
imports from countries not members of the European Community
1 as amended,2 
which has now been codified and replaced by Council Regulation (EC) No. 1225/2009
3 (the "Basic AD Regulation" ). 
                                                      
1 Council Regulation (EC) No. 384/96 of 22 D ecember 1995 on protection against dumped imports 
from countries not members of the European Community, OJ L 56, 6.3.1996, p.1. 
2 Council Regulation (EC) No. 2331/96 of 2 Decem ber 1996, OJ L 317, 6.12.1996, p.1, Council 
Regulation (EC) No. 905/98 of 27 April 1998, OJ L 128, 30.4.1998, p. 18, Council Regulation (EC) 
No. 2238/2000 of 9 October 2000, OJ L 257, 11.10.2000, p.2, Council Regulation (EC) No. 1972/2002 of 5 November 2002, OJ L 305, 7.11.2002, p.1, Council Regulation (EC) No. 461/2004 of 8 March 2004, OJ L 77, 
13.3.2004, p. 12 and Council Regulation (EC) No. 2117/2005 of 21 December 2005, OJ L 340, 23.12.2005, 
p. 17. 
3 Council Regulation (EC) No. 1225/2009 of 30 November 2009 on protection against dumped imports 
from countries not members of the European Community (codified version), OJ L 343, 22.12.2009, p.51 and 
corrigendum to Council Regulation (EC) No. 1225/2009, OJ 7, 12.1.2010, p.22.  WT/DS405/R 
 Page G-3 
 
 
(b) Council Regulation (EC) No. 1472/2006 of 5 October 2006 imposing definitive anti-
dumping duties and collecting definitively the provisional anti-dumping duties imposed on imports of certain footwear with uppers of leather from inter alia  China.
4 
(c) Council Implementing Regulation (EU) No. 1294/2009 of 22 December 2009, 
imposing definitive anti-dumping duties on im ports of certain footwear with uppers 
of leather originating in inter alia  China, as extended to imports of certain footwear 
with uppers of leather consigned from the Macao SAR, whether declared as 
originating in the Macao SAR or not, followi ng an expiry review pursuant to Article 
11(2) of Council Regulation (EC) No 384/96.5 
*** 
 
1. China considers that Article 9(5) of the Basic AD Regulation  which provides that in case of 
imports from non-market economy countries, the duty shall be specified for the supplying country concerned and not for each supplier and that an in dividual duty will only be specified for exporters 
that demonstrate that they fulfil the criteria listed in  that provision, is inconsistent, as such, with the 
EU's obligations under Article XVI:4 of the Marrakesh Agreement Establishing the World Trade 
Organization;  Articles VI:1 and X:3(a) of the GATT 1994; Articles 6.10, 9.2, 9.3, 9.4, 12.2.2 and 
18.4 of the AD Agreement, since these provisions re quire an individual margin and duty to be 
determined and specified for each known exporter or  producer. Furthermore, the criteria listed in 
Article 9(5) of the Basic AD Regulation  to obtain an individual duty are unreasonable and not 
objective.  Moreover, by imposing these conditions only to imports from, allegedly, non-market 
economy countries, the EU's measure is also discrimin atory and thus contrary to Article I:1 of the 
GATT 1994.  
*** 
 2. China considers that the Council Regulation (EC) No. 1472/2006 of 5 October 2006 imposing 
definitive anti-dumping duties and collecting definitively the provisional anti-dumping duties imposed 
on imports of certain footwear  with uppers of leather from inter alia  China
6 ('Definitive Regulation') 
is inconsistent, among others, with  the following provisions of the Anti-Dumping Agreement , the 
GATT 1994 and Part I, paragraph 15 of  China's Protocol of Accession. 
1. Part I, paragraph 15 (a) (ii) of China's Protocol of Accession, Paragraph 151(e), (f) of 
the Report of the Working Party on the Accession of China, Articles 2.4 and 6.10.2 of 
the Anti-Dumping Agreement because the EU did not examine the non-sampled 
cooperating Chinese exporters' Market Econom y Treatment and Individual Treatment 
applications.  
 
2. Article 2.2.2 of the Anti-Dumping Agreement because the amounts for administrative, 
selling and general costs and profits established by the EU for the company granted 
Market Economy Treatment were not calculated on the basis of a reasonable method as the EU used the administrative, selling and general costs and profits of Chinese exporters in other anti-dumping cases invo lving products other than the product 
concerned.  
 
3. Article 2.4 of the Anti-Dumping Agreement and Article VI:1 of the GATT 1994  
because by selecting Brazil as the analogue  country; using the PCN methodology 
established; and making adjustments for differences in production costs when normal 
                                                      
4 OJ L 275, 6.10.2006, p.1. 
5 OJ L 352, 30.12.2009, p. 1. 
6 OJ L 275, 6.10.2006, p. 1. WT/DS405/R 
Page G-4  
 
value is based on prices or constructed valu es in the analogue country, on the basis of 
the data of Chinese exporters that were not granted market economy treatment, the 
EU precluded a fair comparison between th e export price and the normal value.  
 
4. Article 2.6 jo. 4.1 of the Anti-Dumping Agreement because the EU wrongly 
established the like product by not excluding STAF below €7.5/pair even though 
conceptually and technically there is no  difference between STAF below and above 
€7.5/pair. 
 
5. Articles 3.1 and 17.6(i) of the Anti-Dumping Agreement because the EU failed to 
objectively examine, based on positive evid ence, both the volume of the dumped 
imports and the effect of the dumped imports on prices in the domestic market for like products, and the consequent impact of these imports on domestic producers of 
such products, as the EU used different sampling procedures for Chinese exporters on the one hand, and EU producers on the other hand; the EU made the injury 
assessment partially on the basis of the veri fied data of the sampled EU producers and 
partially on the basis of the unverified data  provided by the complainants and national 
federations; 
 
6. Articles 3.1, 3.2 and 17.6(i) of the Anti-Dumping Agreement as the EU failed to 
objectively examine, based on positive evidence, the effect of the dumped imports on 
prices in the domestic market for like produc ts, and the consequent impact of these 
imports on domestic producers of such products  because the EU's underselling 
calculation was based on a very low quantit y of exports of the sampled Chinese 
exporting producers; the EU wrongly calcula ted the underselling margin by applying 
a volume-based reduction ratio to the original ly calculated price-based margin and by 
allocating the non-injurious import value in relation to import values for a period 
outside the investigation period. 
 
7. Article 3.3 of the Anti-Dumping Agreement because the cumulative assessment of 
imports from China and Vietnam by the EU was inappropriate in light of the conditions of competition between the im ported products and the like domestic 
products. 
 
8. Articles 3.1 and 3.4 of the Anti-Dumping Agreement as the EU failed to objectively 
examine, based on positive evidence, the effect of the dumped imports on prices in the domestic market for like products, and th e consequent impact of these imports on 
domestic producers of such products  because several key injury indicators were 
analysed on the basis of the data of the whole EU production and not on the data of the sampled EU producers or EU industry; and the EU inappropriately established the 
profit margin for the EU industry. 
 
9. Article 3.4 of the Anti-Dumping Agreement  because the EU failed to examine the 
impact of the dumped imports on the domes tic industry concerned by evaluating all 
of the relevant economic factors and indices having a bearing on the state of the EU 
industry, notably production capacity and capacity utilization.  
 
10. Articles 3.1 and 3.5 of the Anti-Dumping Agreement as the EU failed to objectively 
examine, based on positive evidence, the effect of the dumped imports on prices in the domestic market for like products, and th e consequent impact of these imports on 
domestic producers of such products  because the EU failed to ensure that injury 
caused to the EU industry by other factor s, which included among others, the export 
performance of EU producers, the effects of counterfeiting, the lifting of the quota on 
Chinese footwear, changes in pattern of c onsumption, the decline in EU demand and  WT/DS405/R 
 Page G-5 
 
 
the effects of exchange rate fluctuations, was not attributed to dumped imports from 
China. 
 
11. Article 6.1.2 of the Anti-Dumping Agreement because the EU failed to ensure the 
prompt availability of evidence presented in writing by one interested party to other 
interested parties. 
 
12. Articles 6.2, 6.4 and 6.5 of the Anti-Dumping Agreement because the EU failed to 
provide timely opportunities for all inter ested parties to see all non-confidential 
information relevant to the defence of thei r interests including, but not limited to, the 
identity and sampling of the EU producers, non-confidential summaries of the 
questionnaire responses of EU producers,  information on the adjustments for 
differences affecting price comparability. 
 
13. Article 6.5.1 of the Anti-Dumping Agreement because the EU failed to ensure the 
disclosure of the names of the complainants; the provision of non-confidential 
summaries of confidential information rela ting to the EU industry, and sampled EU 
producers in the complaint and questionna ire responses respectively, and data 
provided by national federations or, where pr ovided, failed to ensure the provision by 
the EU industry and/or the sampled EU pr oducers, of sufficiently detailed summaries 
to enable a reasonable understanding of the substance of that information. 
 
14. Article 6.5.2 of the Anti-Dumping Agreement because the EU failed to determine that 
the request for confidentiality of the names of the complainants is not warranted; and 
the EU failed to reject the confidential  information provided by the sampled EU 
producers, the non-confidential summary of which was not provided. 
 
15. Article 6.1.1 of the Anti-Dumping Agreement and Part I, paragraph 15 of China's 
Accession Protocol because Chinese exporting producers were granted only 15 days by the EU to submit their written reply to the Market Economy Treatment and Individual Treatment questionnaires. 
 
16. Article 6.9 of the Anti-Dumping Agreement because the additional definitive 
disclosure regarding a change in the form of  the measures was not made by the EU in 
sufficient time for the interested parties to defend their interests. 
 
17. Article 6.10 of the Anti-Dumping Agreement because the sample of the Chinese 
exporting producers selected by the EU was not based on the largest percentage of 
export volumes of the product concerned from China as the sample was established 
before the exclusion of STAF from the product scope of the investigation; and the domestic sales volumes of the sampled companies were also taken into account for 
sample selection. 
 
18. Article 6.10.1 of the Anti-Dumping Agreement because the sample of the Chinese 
exporting producers was not selected by the EU in consultation with, and with the consent of the parties concerned. 
 
19. Articles 3.1 and 9.2 of the Anti-Dumping Agreement 
because the anti-dumping duty 
on Chinese exports was not imposed and collected by the EU on a non-discriminatory basis as the duty rate established for Ch ina was higher than that for Vietnam, 
although both the dumping and injury margin s found for Vietnamese exporters were 
higher than those for Chinese exporters. 
 WT/DS405/R 
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20. Articles 6.10, 6.10.2, 9.2 and 9.3 of the Anti-Dumping Agreement because although 
sampling was resorted to in the curr ent case by the EU for Chinese exporting 
producers, a country-wise duty was imposed on the sampled Chinese exporting producers. 
 
21. Articles 6.10, 6.10.2, and 9.2 of the Anti-Dumping Agreement because the EU applied 
additional conditions by way of the Indivi dual Treatment criteria to deny individual 
dumping margins to cooperating Chinese exporting producers. 
 
22. Article 12.2.2 of the Anti-Dumping Agreement because the EU failed to provide 
sufficiently detailed explanations in the Definitive Regulation regarding matters of 
fact and law which led to the acceptance or rejection of the arguments of the interested parties, and on matters of f act and law and reasons which led to the 
imposition of final measures. 
 
23. Article 17.6(i) of the Anti-Dumping Agreement because the analogue country 
selection process by the EU and the calculation of a dumping margin for the non-sampled cooperating Chinese exporting producer s without the examination of their 
Market Economy Treatment and Individual Tr eatment applications, did not amount to 
a proper establishment of facts and an unbiased and objective evaluation of those 
facts. 
 24. In consequence, Articles 1 and 18.1 of the Anti-Dumping Agreement because an anti-
dumping measure shall be applied only under the circumstances provided for in 
Article VI of the GATT 1994 and in accordance with the provisions of the Anti-
Dumping Agreement . 
  The EU's measure, therefore,  nullifies and impairs benefits  accruing to China under the Anti-
Dumping Agreement and the GATT 1994. 
 
*** 
 3. The EU initiated an expiry review of the anti-dumping measure on imports of certain 
footwear with uppers of leather from inter alia China by publishing a notice of initiation on 3 October 
2008.
7  By Council Implementing Regulation (EU) No. 1294/2009 of 22 December 2009 ('Review 
Regulation'), the Council decided to extend the anti-dumping measure.  
 China considers that the Review Regulation extending the duties is inconsistent, among 
others, with the following provisions of the Anti-Dumping Agreement  and the GATT 1994: 
 
1. Article 5.3 of the Anti-Dumping Agreemen t because the EU failed to examine the 
accuracy and adequacy of the evidence provide d in the expiry review request in order 
to determine whether there was sufficient evidence to justify the initiation of the 
expiry review. 
 
2. Articles 3.1 and 17.6(i) of the Anti-Dumping Agreement because the EU failed to 
objectively examine, based on positive evid ence, both the volume of the dumped 
imports and the effect of the dumped imports on prices in the domestic market for 
like products, and the consequent impact of these imports on domestic producers of 
such products, as the EU used different sampling procedures for Chinese exporters 
and EU importers, on the one hand, and EU producers on the other hand.  
 
                                                      
7 OJ C 251, 3.10.2008, p. 21.  WT/DS405/R 
 Page G-7 
 
 
3. Articles 3.1 and 17.6(i) of the Anti-Dumping Agreement and Article VI:1 of the 
GATT 1994 because the EU failed to ob jectively examine, based on positive 
evidence, both the volume of the dumped imports and the effect of the dumped imports on prices in the domestic market for like products, and the consequent impact 
of these imports on domestic producers of such products; and Article 6.10 of the Anti-
Dumping Agreement , because the EU producers' sample selected was neither 
statistically valid nor representative of the largest volume that could reasonably be 
investigated; the EU producers' sample was not representative of the product types 
covered under the scope of the measure and produced in the EU, and of the 
geographic spread of EU production; th e data of the sampled EU producers, 
pertaining to product types produced differed significantly at different points of the 
investigation; the EU producers' sample in cluded a producer that outsourced its entire 
production of the product concerned to a thir d country in the review investigation 
period; an incorrect product classification methodology was used by the EU mid-way through the investigation; in constituting th e EU importers' sample, the EU failed to 
cover the largest volume that could reasonably be investigated. 
 
4. Article 2.1 of the Anti-Dumping Agreement  because the affirmative findings of the 
EU regarding dumping were based on an  unrepresentative volume of the total 
Chinese imports into the EU during the review investigation period. 
 
5. Article 2.4 of the Anti-Dumping Agreement and Article VI:1 of the GATT 1994  
because the analogue country selection process of the EU; and the PCN methodology, 
as initially used by the EU and suddenly cha nged in the middle of the investigation, 
of necessity precluded a fair comparison between the export price and the normal value.  
 
6. Articles 3.1, 3.4 and 17.6(i) of the Anti-Dumping Agreement  because the EU failed to 
make an objective examination, on the b asis of positive evidence, of the factors 
having a bearing on the state of the domestic industry  because several key injury 
indicators were analysed on the basis of the data of the whole EU production and not the data of the sampled EU producers or the EU industry. 
 
7. Articles 3.1, 3.5 and 17.6(i) of the Anti-Dumping Agreement because the EU failed to 
make an objective examination, on the basis of positive evidence, that dumped imports are, through the effects of dum ping, causing injury; and because the EU 
failed to ensure that injury caused to th e EU industry by other factors was not 
attributed to dumped imports. 
 
8. Article 6.1.2 of the Anti-Dumping Agreement because the EU failed to provide other 
interested parties prompt access to th e information in the non-confidential 
questionnaire responses filed by sampled EU producers. 
 
9. Articles 6.2 and 6.4 of the Anti-Dumping Agreement because the EU failed to provide 
timely opportunities for all interested par ties to see all non-confidential information 
relevant to the defence of their inter ests concerning sampling of EU producers, 
selection of the analogue country and other procedural issues. 
 
10.
 Article 6.5.1 of the Anti-Dumping Agreement because the EU failed to ensure the 
disclosure of the names of the complainants; and the provision of summaries of confidential information relating to the EU industry, and sampled EU producers in the 
expiry review request and questionnaire responses respectively, or, where provided, 
failed to ensure the provision by the EU i ndustry and/or the sampled EU producers, of WT/DS405/R 
Page G-8  
 
sufficiently detailed summaries to enable a reasonable understanding of the substance 
of that information. 
 
11. Article 6.5.2 of the Anti-Dumping Agreement because the EU failed to determine that 
the request for the confidentiality of the na mes of the complainants is not warranted; 
and failed to reject the confidential in formation provided by the sampled EU 
producers, the non-confidential summaries of which were not provided. 
 
12. Article 6.8 of the Anti-Dumping Agreement because the EU did not apply facts 
available when faced with incorrect and deficient information, including product 
classification information, provided by sampled EU producers in the injury 
questionnaire responses. 
 
13. Article 6.9 of the  Anti-Dumping Agreement because the EU failed to inform all 
interested parties of the essential facts unde r consideration with regard to the Market 
Economy Treatment and Individual Treatmen t applications of Chinese exporters. 
 14. Article 11.3 of the Anti-Dumping Agreement because the EU's determination that 
expiry of the measure is likely to lead to a continuation of dumping and injury is 
based on determination of continued dumping and injury in violation of Articles 2.1, 
2.4, 3.1, 3.4, 3.5, 6.8, 6.10 and 17.6(i) of the Anti-Dumping Agreement .  
 
15. Article 12.2.2 of the Anti-Dumping Agreement because the EU failed to provide 
sufficiently detailed explanations in the Re view Regulation regarding matters of fact 
and law and reasons which led to the extens ion of the measures; and of reasons which 
led to the acceptance or rejection of the arguments of the interested parties. 
 
16. Article 17.6(i) of the Anti-Dumping Agreement because the analogue country 
selection process by the EU did not amount to a proper establishment of the facts and an unbiased and objective evaluation of those facts. 
 
17. In consequence, Articles 1 and 18.1 of the Anti-Dumping Agreement because an anti-
dumping measure shall be applied only under the circumstances provided for in Article VI of the GATT 1994 and in accordance with the provisions of the Anti-Dumping Agreement. 
 
 The Government of China reserves its right to raise further factual claims and legal issues 
during the course of the consultations.   We look forward to receiving your reply to the present request and to fixing a mutually 
convenient date for consultations. 
 
  WT/DS405/R 
 Page G-9 
 
 
ANNEX G-2 
  
REQUEST FOR THE ES TABLISHMENT OF  
A PANEL BY CHINA 
 
WORLD TRADE  
ORGANIZATION   
WT/DS405/2 
9 April 2010 
 
 (10-1877) 
 Original:   English 
 
 
 
EUROPEAN UNION – ANTI-DUMPING MEASURES ON  
CERTAIN FOOTWEAR FROM CHINA 
 
 
Request for the Establishment of a Panel by China 
 
  The following communication, dated 8 April 2010, from the delegation of China to the Chairman of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU. 
 
_______________ 
 
  On 4 February 2010, The People's Republic of  China ("China") requested consultations with 
the European Union ("EU") pursuant to Article 4 of the DSU, Article XXIII:1 of the General 
Agreement on Tariffs and Trade 1994 ("GATT 1994" ) and Article 17.3 of the Agreement on 
Implementation of Article VI of GATT 1994 (" Anti-Dumping Agreement ") with respect to 
Article 9(5) of Council Regulation (EC) No. 384/96 on protection against dumped imports from 
countries not members of the European Community as amended, codified and replaced by Council 
Regulation (EC) No. 1225/2009 (the " Basic AD Regulation "), Council Regulation (EC) 
No. 1472/2006 of 5 October 2006 imposing definitiv e anti-dumping duties and collecting definitively 
the provisional anti-dumping duties imposed on imports  of certain footwear with uppers of leather 
from inter alia  China, and Council Implementing Regulation (EU) No. 1294/2009 of 
22 December 2009, imposing definitive anti-dumping duties on imports of certain footwear with 
uppers of leather originating in inter alia  China, as extended to imports of certain footwear with 
uppers of leather consigned from the Macao SAR, wh ether declared as originating in the Macao SAR 
or not, following an expiry review pursuant to Artic le 11(2) of Council Regulation (EC) No 384/96. 
  The request for consultations was circulated in document WT/DS405/1 - G/L/916 - G/ADP/D82/1 dated 8 February 2010.  
 Consultations were held on 31 March 2010 with a view to reaching a mutually satisfactory 
solution. These consultations however failed to resolve the dispute.   Therefore, China respectfully requests, pursuant to Articles 4 and 6 of the DSU, Article XXIII:2 of the GATT 1994 and Articles 17.4 and 17.5 of the Anti-Dumping Agreement , that WT/DS405/R 
Page G-10  
 
the Dispute Settlement Body ("DSB") establish a Panel with standard terms of reference as set out in 
Article 7.1 of the DSU to examine China's claims.   
I. Article 9(5) of Council Regulation (EC) No. 384/96 on protection against dumped 
imports from countries not members of the European Community
1 as amended,2 codified and 
replaced by Council Regulation (EC) No. 1225/20093 (the " Basic AD Regulation" ) 
 
Article 9(5) of the Basic AD Regulation effectively provides that, in case of imports from non-market 
economy countries (including China), the anti-dumping duty shall be specified for the supplying country concerned and not for each supplier and th at an individual duty will effectively only be 
specified for the exporters which can demonstrate, on the basis of properly substantiated claims, that 
they fulfil all the criteria listed in that provision.   China submits that Article 9(5) of the Basic AD Regulation is inconsistent as such with, at least, the EU's obligations under the following provisions of the Anti-Dumping Agreement, the GATT 1994 
and the Marrakesh Agreement Establis hing the World Trade Organisation: 
 I.1 Articles 6.10 of the Anti-Dumping Agreement  because in order to benefit from an individual 
dumping margin, an exporter from China must fulfil specific conditions that are not provided for in 
that article or elsewhere in the Anti-Dumping Agreement . 
 
I.2 Article 9.2 of the Anti-Dumping Agreement  because in order to benefit from an individual 
anti-dumping duty, an exporter from China must fulfil specific conditions that are not provided for in that article or elsewhere in the Anti-Dumping Agreement . 
 I.3 Article 9.3 of the Anti-Dumping Agreement  because on account of the additional conditions in 
order to be entitled for an individual dumping marg in, for those producers/exporters who do not fulfil 
the conditions for the individual treatment regime, th e anti-dumping duty is determined on the basis of 
a dumping margin likely to exceed the dumping marg in established in accordance with Article 2 of 
the Anti-Dumping Agreement . 
 I.4 Article 9.4 of the Anti-Dumping Agreement  given that the anti-dumping duty that is applied to 
imports from producers/exporters who are not included in the sample is calculated on the basis of the 
dumping margins of the sampled producers/exporte rs, including dumping margins of those who do 
not qualify for individual treatment in accordance with Article 9(5) of the Basic AD Regulation . 
 I.5 Article I of the GATT 1994 since, by laying down additional conditions for Chinese 
exporters/producers to benefit from an individua l dumping margin and an individual anti-dumping 
duty, the EU fails to accord to China advant ages granted to other contracting parties. 
 I.6 Article XVI:4 of the Marrakesh Agreement establishing the World Trade Organisation and 
Article 18.4 of the Anti-Dumping Agreement  since the EU has not taken all necessary steps, of a 
                                                      
1 Council Regulation (EC) No. 384/96 of 22 D ecember 1995 on protection against dumped imports 
from countries not members of the European Community, OJ L 56, 6.3.1996, p.1. 
2 Council Regulation (EC) No. 2331/96 of 2 Decem ber 1996, OJ L 317, 6.12.1996, p.1, Council 
Regulation (EC) No. 905/98 of 27 April 1998, OJ L 128, 30.4.1998, p. 18, Council Regulation (EC) No. 
2238/2000 of 9 October 2000, OJ L 257, 11.10.2000, p.2, Council Regulation (EC) No. 1972/2002 of 5 November 2002, OJ L 305, 7.11.2002, p.1, Council Regulation (EC) No. 461/2004 of 8 March 2004, OJ L 77, 
13.3.2004, p. 12 and Council Regulation (EC) No. 2117/2005 of 21 December 2005, OJ L 340, 23.12.2005, 
p. 17. 
3 Council Regulation (EC) No. 1225/2009 of 30 November 2009 on protection against dumped imports 
from countries not members of the European Community (codified version), OJ L 343, 22.12.2009, p.51 and 
corrigendum to Council Regulation (EC) No. 1225/2009, OJ 7, 12.1.2010, p.22.  WT/DS405/R 
 Page G-11 
 
 
general or particular character, to ensure the c onformity of its laws, regul ations and administrative 
procedures with the provisions of the GATT 1994 and the Anti-Dumping Agreement . 
 I.7 Article X:3(a) of the GATT by not administering the provisions of Article 9(5) of the Basic 
AD Regulation  in a uniform, impartial and reasonable manner.   
 
*** 
 
II Council Implementing Regulation (EU) No. 1294/2009 of 22 December 2009, imposing 
definitive anti-dumping duties on imports of certain footwear with uppers of leather originating 
in inter alia  China, as extended to imports of certain footwear with uppers of leather consigned 
from the Macao SAR, whether declared as originating in the Macao SAR or not, following an expiry review pursuant to Article 11(2) of Council Regulation (EC) No 384/96
4  
 
 The EU initiated an expiry review of the an ti-dumping measure applicable to the imports of 
certain footwear with uppers of leather from inter alia  China on 3 October 2008. Council 
Implementing Regulation (EU) No. 1294/2009 of 22 December 2009 extended the measure for a 
period of fifteen months.  China considers that Council Implementing Regul ation (EU) No. 1294/2009 of 22 December 2009 is 
inconsistent, at least, with the EU's oblig ations under the follo wing provisions of the Anti-Dumping 
Agreement  and the GATT 1994: 
 II.1 Articles 2.1 and 2.4 of the Anti-Dumping Agreement and Article VI:1 of the GATT 1994 
because the EU precluded a fair comparison between the export price and the normal value: 
 
 on account of the analogue country selection procedure and the selection of Brazil as 
the analogue country; and 
 
 by using the PCN methodology applied in the original investigation and suddenly 
reclassifying the footwear categories in the middle of the investigation.  
 
II.2 Articles 3.1 and 17.6(i) of the Anti-Dumping Agreement because the EU failed to objectively 
examine, based on positive evidence, both the volume of the dumped imports and the effect of the 
dumped imports on prices in the domestic market fo r like products, and the consequent impact of 
these imports on domestic producers of such products, as the EU used different sampling procedures 
for Chinese exporters, EU importers, and non-co mplaining EU producers on the one hand, and 
complainant EU producers on the other hand.  
 
II.3 Articles 3.1 and 17.6(i) of the Anti-Dumpi ng Agreement and Article VI:1 of the GATT 1994 
because the EU failed to objectively examine, b ased on positive evidence, both the volume of the 
dumped imports and the effect of the dumped imports on prices in the domestic market for like 
products, and the consequent impact of these impor ts on domestic producers of such products; and 
Article 6.10 of the Anti-Dumping Agreement, because: 
 
 the EU selected the EU producers' sample in  the absence of requisite data which is 
normally solicited in a sampling form, is essential for the selection of the sample, and was requested from non-complainant EU producers who made themselves known; 
 the EU producers' sample selected was neither statistically valid nor represented the 
largest percentage of volume that could reas onably be investigated and the EU failed to 
cover the largest percentage of volume that could be investigated;   
                                                      
4OJ L 352, 30.12.2009, p. 1. WT/DS405/R 
Page G-12  
 
 the EU producers' sample included a producer  that outsourced its entire production of 
the product concerned to a third country in the review investigation period; and 
 the EU used an incorrect product classification methodology and suddenly reclassified 
the footwear categories in the middle of the investigation. 
II.4 Articles 3.1, 3.4 and 17.6(i) of the Anti-D umping Agreement because the EU failed to make 
an objective examination, on the basis of positive evidence, of the factors having a bearing on the 
state of the domestic industry because several key inju ry indicators were analysed on the basis of the 
data of the whole EU production as termed by the EU , that included data pertaining to EU producers 
not part of the EU industry.  II.5 Articles 3.1, 3.5 and 17.6(i) of the Anti-D umping Agreement because the EU failed to make 
an objective examination, on the basis of positive evidence, that dumped imports are, through the 
effects of dumping, causing injury; and because the EU  failed to ensure that injury caused to the EU 
industry by other factors was not attributed to dumped imports.  II.6 Article 6.1.2 of the Anti-Dumping Agreement because the EU failed to provide other interested parties prompt access to the informa tion in the non-confidential questionnaire responses 
filed by sampled EU producers. 
 II.7 Articles 6.2 and 6.4 of the Anti-Dumping Ag reement because the EU failed to provide timely 
opportunities for all interested parties to see all non- confidential information re levant to the defence 
of their interests concerning but not limited to sa mpling of EU producers, selection of the analogue 
country and other procedural issues. 
 
II.8 Articles 6.5 and 6.5.1 of the Anti-Dumping Agreement because the EU failed to ensure 
among others, the disclosure of the names of the complainants; and the provision of summaries of 
confidential information relating to the EU industry,  and sampled EU producers in the expiry review 
request and questionnaire responses respectively; and data used for selecting the sample of EU 
producers, or, where provided, failed to ensure the provision by the EU industry and/or the sampled 
EU producers, of sufficiently detailed summaries  to enable a reasonable understanding of the 
substance of that information.  II.9 Articles 6.2 and 6.5.2 of the Anti-Dumping Agreement because the EU failed to determine 
that the request for the confidentiality of the names of the complainants is not warranted; and failed to 
reject the confidential information provided by  the sampled EU producers, the non-confidential 
summaries of which were not provided.  II.10 Articles 3.1 and 6.8 of the Anti-Dumping Agreement because the EU did not apply facts 
available when faced with incorrect and deficient information, including but not limited to the product 
classification information, provided by sampled EU  producers in the injury questionnaire responses. 
 II.11 Article 11.3 of the Anti-Dumping Agreement be cause the EU's determination that expiry of 
the measure is likely to lead to a continuation of  dumping and injury is based on determination of 
continued dumping and injury in violation of Articles 2. 1, 2.4, 3.1, 3.4, 3.5, 6.8, 6.10 and 17.6(i) of 
the Anti-Dumping Agreement.  
 II.12 Article 12.2.2 of the Anti-Dumping Agreemen t because the EU failed to provide sufficiently 
detailed explanations in the Council Implementing Regulation (E U) No. 1294/2009 of 22 December 
2009, regarding matters of fact and law and reasons which led to the ex tension of the measures; and of 
reasons which led to the acceptance or rejection of the arguments of the interested parties. 
  WT/DS405/R 
 Page G-13 
 
 
II.13 Article 17.6(i) of the Anti-Dumping Ag reement because the analogue country selection 
process by the EU did not amount to a proper establishment of the facts and an unbiased and objective evaluation of those facts.  II.14 In consequence, Articles 1 and 18.1 of  the Anti-Dumping Agreement because an anti-
dumping measure shall be applied only under the ci rcumstances provided for in Article VI of the 
GATT 1994 and in accordance with the provisi ons of the Anti-Dumping Agreement. 
       
*** 
  III. Council Regulation (EC) No. 1472/2006 of 5 October 2006 imposing definitive anti-dumping duties and collecting definitively the provisional anti-dumping duties imposed on imports of certain footwear with uppers of leather from inter alia  China
5  
 
China submits that Council Regulati on (EC) No. 1472/2006 of 5 October 2006  leading to the 
imposition of an anti-dumping duty of 16.5% on the impor ts of certain footwear with uppers of leather 
from China with the exception of one Chinese producer-exporter, is inconsistent, at least, with the 
obligations of the EU under the following provisions of the Anti-Dumping Agreement , the 
GATT 1994 and Part I, paragraph 15 of  China's Protocol of Accession: 
 III.1 Part I, paragraph 15 (a) (ii) of China's Pr otocol of Accession, Paragraph 151(e), (f) of the 
Report of the Working Party on the Accession of China, Articles 2.4 and 6.10.2 of the Anti-Dumping 
Agreement because the EU did not examine the non-sampled cooperating Chinese exporting 
producers' Market Economy Treatment and Individual Treatment applications.  
 III.2 Article 2.2.2 of the Anti-Dumping Agreement because the amounts for administrative, selling 
and general costs and profits established by th e EU for the company granted Market Economy 
Treatment were not calculated on the basis of a re asonable method as the EU used the administrative, 
selling and general costs and profits of Chin ese exporters in other anti-dumping cases involving 
products other than the product concerned.   III.3 Article 2.4 of the Anti-Dumping Agreement and Article VI:1 of the GATT 1994  because the 
EU precluded a fair comparison between th e export price and the normal value:  
 
 on account of the analogue country selection procedure and the selection of Brazil as 
the analogue country;  
 by using the PCN methodology established; and 
 by making adjustments for differences in production costs when normal value was 
based on prices or constructed values in the an alogue country, on the basis of the data 
of Chinese exporters that were not granted market economy treatment. 
III.4 Article 2.6 of the Anti-Dumping Agreement read together with Articles 3.1 and 4.1 of the 
Anti-Dumping Agreement because the EU wrongly established the like product/product concerned by 
not excluding STAF below €7.5/pair even though conceptually and technically there is no difference between STAF below and above €7.5/pair.  
                                                      
5OJ L 275, 6.10.2006, p.1. This measure confir ms, and incorporates r easoning from Commission 
Regulation (EC) No. 553/2006 of 23 March 2006 imposing provisional anti-dumping duty on imports of certain 
footwear with uppers of leather from inter alia  China. OJ L 98, 6.4.2006, p.3. 
 WT/DS405/R 
Page G-14  
 
III.5 Articles 3.1 and 17.6(i) of the Anti-Dumpi ng Agreement and Article VI:1 of the GATT 1994 
because the EU failed to objectively examine, b ased on positive evidence, both the volume of the 
dumped imports and the effect of the dumped imports on prices in the domestic market for like 
products, and the consequent impact of these impor ts on domestic producers of such products; and 
Article 6.10 of the Anti-Dumping Agreement, because: 
 
 the EU used different sampling procedures for Chinese exporters on the one hand, and 
EU producers on the other hand; and 
 the EU made the injury assessment partially on the basis of the verified data of the 
sampled EU producers and partially on the basi s of the unverified data pertaining to the 
EU industry provided by the complainant producers at the complaint stage, as cross-
checked, where possible, with  the overall information provided by the relevant 
associations throughout the EU. 
III.6 Articles 3.1, 3.2, 9.1 and 17.6(i) of the Anti-Dumping Agreement as the EU failed to 
objectively examine, based on positive evidence, th e effect of the dumped imports on prices in the 
domestic market for like products, and the conseque nt impact of these imports on domestic producers 
of such products  because: 
 
 the EU's underselling calculation was based on a very low quantity of exports of the 
sampled Chinese exporting producers; and 
 the EU wrongly calculated the underselli ng margin by applying a volume-based 
reduction ratio to the originally calculated price-based margin and by allocating the 
non-injurious import value in relation to import values for a period outside the 
investigation period; 
 the EU inappropriately established the profit margin for the EU industry. 
III.7 Article 3.3 of the Anti-Dumping Agreement because the cumulative assessment of imports 
from China and Vietnam by the EU was inappropri ate in light of the conditions of competition 
between the imported products and the conditions of competition be tween the imported products and 
the like domestic product.  
III.8 Articles, 3.1, 3.2 and 3.4 of the Anti-Dumping Agreement  because the EU failed to examine 
the impact of the dumped imports on the domestic indus try concerned by evaluating all of the relevant 
economic factors and indices having a bearing on the state of the EU industry, notably production 
capacity and capacity utilization.   
III.9 Articles 3.1 and 3.5 of the Anti-Dumping Agreement as the EU failed to objectively examine, 
based on positive evidence, the effect of the dumped imports on prices in the domestic market for like 
products, and the consequent impact of these imports on domestic producers of such products  because 
the EU failed to ensure that inju ry caused to the EU industry by other factors, including but not 
limited to the export performance of EU producers, the lifting of the quota on Chinese footwear, changes in pattern of consumption, the decline in EU demand and the effects of exchange rate 
fluctuations, was not attributed to dumped imports from China. 
 III.10 Articles 6.2, 6.4 and 6.5 of the Anti-Dumping Agreement because the EU failed to provide 
timely opportunities for all interested parties to see all non-confidential information relevant to the 
defence of their interests including, but not limited to, the identity and sampling of the EU producers, 
information on the adjustments for di fferences affecting price comparability. 
  WT/DS405/R 
 Page G-15 
 
 
III.11 Articles 6.5 and 6.5.1 of the Anti-Dumping Agreement because the EU failed to ensure the 
disclosure of the names of the complainants; the provision of non-confidential summaries of 
confidential information relating to the EU industr y and sampled EU producers in the complaint and 
questionnaire responses respectively; information used  for sampling, among others or where provided, 
failed to ensure the provision by the EU industry and/or the sampled EU producers, of sufficiently 
detailed summaries to enable a reasonable understa nding of the substance of that information. 
 III.12 Articles 6.2 and 6.5.2 of the Anti-Dumping Agreement because the EU failed to determine that 
the request for confidentiality of the names of the co mplainants is not warranted; and the EU failed to 
reject the confidential information provided by  the sampled EU producers, the non-confidential 
summary of which was not provided. 
 III.13 Article 6.1.1 of the Anti-Dumping Agreement and Part I, paragraph 15 of China's Accession 
Protocol because Chinese exporting producers were granted only 15 days by the EU to submit their 
written reply to the Market Economy Treatment  and Individual Treatment questionnaires. 
 
III.14 Article 6.9 of the Anti-Dumping Agreement because the additional defi nitive disclosure issued 
on 28 July 2006 regarding a change in the form of the measures was not made by the EU in sufficient 
time for the interested parties to defend their interests.  III.15 Article 6.10 of the Anti-Dumping Agreement because the sample of  the Chinese exporting 
producers selected by the EU was not based on the largest percentage of export volumes of the 
product concerned from China as:  
 the sample was established befo re the exclusion of STAF from the product scope of the 
investigation; and 
 the domestic sales volumes of the sampled co mpanies were also taken into account for 
sample selection. 
III.16  Articles 3.1 and 9.2 of the Anti-Dumping Agreement because the anti-dumping duty on 
Chinese exports was not imposed and collected by the EU on a non-discriminatory basis as the duty 
rate established for China was higher than that for Vietnam, although both the dumping and injury margins found for Vietnamese exporters we re higher than those for Chinese exporters. 
 
III.17 Articles 6.10, 6.10.2, 9.2 and 9.3 of the Anti-Dumping Agreement because although sampling 
was resorted to in the curren t case by the EU for Chinese exporting producers, a country-wide duty 
was imposed on the sampled Chinese exporting producers.  III.18 Articles 6.10, 6.10.2, and 9.2 of the Anti-Dumping Agreement because the EU applied 
additional conditions by way of the Individual Treat ment criteria to deny individual dumping margins 
to cooperating Chinese exporting producers. 
 III.19 Article 12.2.2 of the Anti-Dumping Agreement because the EU failed to provide sufficiently 
detailed explanations in Council Regula tion (EC) No. 1472/2006 of 5 October 2006  regarding matters 
of fact and law which led to the acceptance or rejecti on of the arguments of the interested parties, and 
on matters of fact and law and reasons whic h led to the imposition of final measures. 
 III.20 Article 17.6(i) of the Anti-Dumping Agreement because the analogue country selection 
process by the EU and the calculation of a dumpi ng margin for the non-samp led cooperating Chinese 
exporting producers without the examination of their Market Economy Treatment and Individual 
Treatment applications, did not amount to a pr oper establishment of facts and an unbiased and 
objective evaluation of those facts. WT/DS405/R 
Page G-16  
 
 III.21 In consequence, Articles 1 and 18.1 of the Anti-Dumping Agreement because an anti-dumping 
measure shall be applied only under the circumst ances provided for in Article VI of the GATT 1994 
and in accordance with the provisions of the Anti-Dumping Agreement . 
 
 
 The EU's measure therefore nullifies and impairs benefits accruing to China under the Anti-
Dumping Agreement , the GATT 1994, the Marrakesh Agreem ent Establishing the World Trade 
Organisation and China's Protocol of Accession.  
 China asks that this request be  placed on the agenda of the DSB meeting scheduled to take 
place on 20 April 2010.  
__________